Unit – 4 - Theories and concepts of justice.

(a) Concept of natural and social justice

In a memorable scene from the history of philosophy, Socrates, awaiting

execution, is visited by his wealthy friend, Crito, who offers to help him escape
from prison and flee into exile. Despite the unjust charges against him, and the
relative ease with which he could escape, Socrates refuses Crito’s offer,
arguing that it is worse to commit injustice by violating the law than to suffer
injustice oneself. It is better to maintain one’s own virtue, even if it means
accepting an unjust outcome. Being a just person matters more than injustice
generated by institutions. Indeed, for Socrates, it matters more than life itself.
Socrates’ uncompromising claim about virtue and justice has gone unheeded in
our times. Instead, social justice dominates public discussion.
Social justice has at least three distinguishing features-
First, social justice focuses primarily on the evaluation of institutions, not
individual actions.
Second, social justice is concerned with outcomes, rather than procedures.
Third, the justice in social justice refers to fairness understood as equality—
usually social or economic—not adherence to existing law.
Taken together, then, social justice is a matter of making institutions fair, by
righting the wrongs of social and economic inequalities.

Whether intentionally or not, social justice tends to destroy what in earlier

ages was called natural justice. Natural justice refers to established
institutional (legal) and interpersonal (social) norms for resolving conflict and
maintaining order. Such is the shared inheritance of the system of English
Common Law on which many beneficial legal systems rest. While social justice
strives for ideally just institutions, natural justice is content with the justice
that obtains approximately from one person in relation to another within a
system that prevents mutual injury and induces cooperation. The rules of
such a game matter more than who wins (or loses), which is why, all things
considered, a just procedure is preferable to a just outcome. Lastly, what
makes individual action just is adherence to law, to the rules of the game, not
the fairness of an imagined alternative game, which realizes a more equal
outcome.
 (b) John Rawls- A theory of Justice

Every great philosopher, in their own way, questioned the fundamental

assumptions that were present in the thinking of their time. That is a hallmark
of a great philosopher. Because, when seeking solutions to philosophical
problems, casting aside the culture or linguistic assumptions of a particular
snapshot in time very often leads philosophers of the next generation to
understand how those assumptions have been limiting our ways of thinking
about things. Likewise, Rawls also questioned one of the fundamental
assumptions of his time.
Can human beings live and flourish for any extended period of time in liberal
democratic societies? The political paradigm of the enlightenment. A
government by the many. Liberal in the sense that there is a strong focus on
rational discourse. The acceptance of outside ideas. The legitimacy of political
ideas being decided by having conversations between competing ideas, but the
best ideas rise to the top and direct the future of society for the time being and
if those prevailing ideas don't happen to be the ones you believe in, you're
supposed to accept those ideas as part of a greater political process and work
to defend your positions better the next time we're having an election. This
was brand new way of conducting politics when it was proposed in the
enlightenment and the assumption over the years by so many in the west has
been that not only is this one of greatest inheritances from the enlightenment.
They would say that it is the best political system ever devised.
John Rawls is going to question those assumptions. He's going to ask whether
or not liberal democratic societies might only be the greatest political system
ever devised on paper. What Rawls is referencing is the long history of this
type of society descending into various types of chaos- civil wars, fascism,
class warfare, extreme violence between different groups extreme wealth
inequality.
So, it should be said right off the bat that John Rawls’s answer to this question
-whether we can actually live for any length of time in these societies is yes, he
is extremely optimistic about the future of liberal democratic society.
The next question any reasonable person has to ask is why has there been
such a history of failure if liberal democracy is so great?
The answer to this question is that is misplacement of priorities. We claim to
be creating societies that are just. Ones that won't lead to outcomes like these
extreme tensions between groups, but never really had a truly substantive
conversation about what we really mean when we say that. We say things
like liberty and justice for all, but what exactly do we mean when we say
society should be ensuring justice.
This is not just an important question to Rawls. This is THE question. Here's, a
very famous quote: “justice is the first virtue of social institutions, as truth is
to systems of thought.” What he means is that - in the same way you would
judge the legitimacy of a system of ideas based on how true it is. We should
judge the legitimacy of our social institutions based on how just they are.
What is Rawls talking about when he is referencing justice? He's talking
about is what he calls distributive justice. The idea is that we as individuals
gather together to form groups, we call societies. We do this because it
benefits us too when we work together in groups were just far more efficient
than as mere individuals, and because of this there's a lot surplus value
created which only exists because we're working together. The question
becomes: how does this surplus value get allocated or how should it be
distributed (as in, distributive justice)? Another name for this surplus value is
“primary social goods” and these social goods, certainly include obvious
things like income, power and wealth but Rawls would want to point out that
our teamwork, as a society produces value in other areas that are a lot less
intuitive and yet these areas still need to be considered in this discussion,
things like rights, liberties opportunities, etc.
Right there in the title (the Theory of justice), he's constructing a theory of how
we should distribute these trappings of society in the most just manner
possible. Rawls thinks that justice can be created by making sure that we
have just institutions. In other words, if the structure of our society is just
including our constitution and laws, then we'll have a just society.
A bit of context on where Rawls is coming from - Rawls is a statistician, and
he's looking at the numbers, and he sees a huge, disparity in the United States
in terms of income inequality. To him, this is a failure of the liberal, democratic
societies of the past and their silence on the topic of distributive justice. He
starts by asking a fundamental question. The question is should inequalities
exist within a just society?
Inequalities do exist within societies. In fact, their existence is inevitable.
The next question is what type of inequalities is just, what makes these
inequalities just and what criteria do we use to determine that?
Perhaps an inequality is just as long as it’s based on some sort of work or effort
that somebody has put in.
The question now becomes: how do we identify the instances where the
inequality is based on effort and the ones made possible only by some sort of
unfair advantage?
Unfair advantage example- Humanity reaches a point where we have a level of
technology that we can travel vast distances through space and colonise other
planets. One day an astronaut lands on one of these earth-like planets. He puts
up a flag to the ground and says this one's mine. A couple years later astronaut
2 comes along as his ship breaks down. The planet's completely empty
except astronaut 1 and their little house. For astronaut 2, to ever be able to
carve off even a sliver of an existence on this planet, they will always be at the
mercy of astronaut 1. The first astronaut will dictate all the terms of the
agreements. The deal will almost certainly always favour the first astronaut
simply because the first astronaut happened to get there first. This is a
metaphor for how everybody enters into the world, who was born into
inherited wealth, power or opportunity. By complete chance, their lives are at
the mercy of someone else was born into their place by complete chance.
Another example- If you’re driving a car at the a dhering to the rules of traffic
and someone falls on the road just in front of you and you drive over them. In
this situation, you’d not be thrown in jail because technically someone dies
and you caused it despite being a bad luck. It would not be “just” for you to
own the consequences of something that happened because of a horrible luck.
Likewise, Rawls would say: when you're born into an estate that's worth a
billion dollars. You are equally not in complete ownership of things that are
only in your life because of a good stroke of luck. But that also does not mean
that govt will take it from you because of this. (Explained later)
We need to decide on further criteria to determine how much of that
inequality is just, and why?
Inequalities extend far beyond just money that you're born into. People
are born with all sorts of inequalities. You can be born really smart. You
could be born to a family that doesn't care about you. You could be born a
really attractive person. You could be bought when into an area that is
horrible resources for public schools, and you have virtually no chance of
excelling.
We are born holding the stubs to this genetic and cultural lottery that will
dictate the parameters of our existence and Rawls would say that if we
truly want the inequalities of our society to be based solely on a difference in
work or effort. We need to be willing to not ask people to own the bad or
good circumstances in which they were born into.
The problem for Rawls is that everyone thinks of their self-interest. A person
who is born rich will never vote for a party who he knows will take away his
advantage and likewise, a person who is born in a poor family will never vote
for a party that leaves them poor for the rest of their lives. So, even if we can
identity which of these birth rights are just or unjust in the society, how will
we pass a social reform in a liberal democracy?
To solve this problem Rawls creates one of the most influential thought
experiments of the twentieth century. His goal with the experiment is to
show that the massive levels of inequality exist in the modern United States
simply because the society already exists that way. Powerful interests are
already invested in the way that things are and meaningful social change is
very difficult to actually carry out the system being the way that it is. But he
would ask, what would society look like if we had to start all over again?
Would we structure society in the exact same way? Would things play
out exactly in the same way that they are now? What if our position, when
formulating this new society was not that of astronaut 2, from our example
before instead, what if we were all simultaneously designing a society from the
position of astronaut 1 that first day that landed on the planet. This is what
Rawls refers to as the original position. Basically, it's his version of the state of
nature.
Veil of ignorance- Imagine your structuring this society through what he calls
a veil of ignorance or you are asked to decide how this society will be
structured without knowing anything about your position within that society
once its founded. You cannot know whether you're going to be living in south
Delhi/ South Bombay or a small village in Rajasthan. You can't know your
age, gender race, sexual orientation. You can't know your IQ level, athletic
ability or charisma. You can't know what kind of family you're going to be
born into. Whether you're going to have some mental illness makes every
day miserable.
No rational being would look at the statistics and choose that structure (like
that of the modern US) because it's much more likely for you to be born into
one of the many millions that struggle.
So how would rational being structure it? They would follow what is known
as the maximin rule or the idea that we would pick the structure of a society
that provides the best situation for the least advantaged within that society,
in comparison to all other potential societies. Put another way, we pick the
structure where the worst-case scenario for a person is the best out of all the
other possible worst-case scenarios and other strategies. Rational beings
would do this because they don’t know whether they’ll be better off or worse
off.
Eg: Imagine you're having a pizza party and your asked by the people at the
party to cut up the pizza however you want. The catch is you don’t know which
slice of pizza you will get until after you’ve cut the pizza. You may cut the pizza
in bigger or smaller pieces, but one thing’s for sure here: you're going to cut
the pizza in a way where if you were to get the smallest piece it still something
you'd be satisfied receiving. Someone may say we can cut the pizza equally as
well. Like a socialist pizza cutting where everyone gets one equal slice but
Rawls is not a fan of socialism. As per him, socialism achieves equality at the
expense of everyone. We’re equal in socialism but at a lower standard of
living in comparison to a re-structured capitalist society. This is in adherence
to the maximin rule.
To Rawls, the smallest piece of pizza and a revised capitalist structure is big
than the equal pieces provided by socialism. It’s just a bigger pizza that we're
cutting from.
Justice is not an eye for an eye. Justice is not total equality. Justice is fairness,
to Rawls. What's an example of an inequality that exist that is fair? First it
must adhere to 2 strict rules-
One, Social and economic inequalities must first be to everyone's advantage.
Two, such social and economic inequalities must be attached to positions
that are equally open to all.
So, with the second rule, Rawls is trying to protect against any sort of system
with different classes people are born into, or even figurative classes.
No positions in society reserved for a specific person or type of person, even if
you're the least advantaged person, you can still apply for the position.
As per Rawls, historically there have been 3 primary ways in which people are
blocked from prestigious positions in a society. One is legal, were there are
actual legal barriers precluding a pers on from holding a position. Two, is by
your birth status, which would make disqualified from holding a position
because of something about how you were born. Third, is having the talent or
effort to actually be able to excel at the position. Rawls thinks that a
just society will stick to this third one, and it has only ones that do can be said
to have true equality of opportunity. Now, the fi rst rule that these Inequalities
must first be to everyone's advantage. This really is the cornerstone of what
rules would eventually call his “system of liberal equality”
Example: A person inherits a billion dollars and then spends their life investing
in reinvesting that money to improve the world around them. Create jobs for
the disadvantaged, innovate technology to make lives easier, give scholarships
and donations, build stores and give services etc. This is an example of an
inequality that may exist, but it's everyone's advantage. So, it is a possibility to
inherit vast sums of money and still use it in a way that benefits others and
makes it fair or just. On the other hand, the same person took those billion
dollars and just but it sits under a very large mattress for their entire life. That
wouldn't be to everyone's advantage. And at this point, there must be some
type of heavy tax to penalize the inaction. But this extends beyond just
inherited money, when Virat Kohli wins the genetic lottery and due to
athleticism uses his talents to entertain people and at the same time become a
cultural icon then this is an example of inequality but he is using it to entertain
everyone. When someone's born with extreme intelligence, and they go on to
graduate from a prestigious school and become the tip of the iceberg in some
new research programme. The research will be used to improve the lives of the
people. This way of thinking but inequalities within a society is more broadly
known as “the difference principle”. We should remove inequalities within a
society as much as we can until the removal of further inequalities would
cause harm to least advantaged.
Rawls is giving a justification of modern, progressive income tax. We all have
different talents and abilities. Take an example, the people are born with
extreme intelligence, who were also lucky to be born into a family that
nurtured that intelligence, who are also lucky to be born into an area where
there are low crime and decent public schools, who also had the money and
freedom to go to college and were also healthy enough to not be in and out of
the hospital, their whole life. This person’s success is on the contribution of
everyone in society has made anything that they ever accomplish even
possible. If he had to grow his own food and travel by walking, he would’ve
accomplished very less. Through our own individual skill sets we all look
at each other in a way. This is why we want to incentivize people to become as
talented as they possibly can. To Rawls, we want to allow for unequal
positions of pay or status, but the difference in money or status is only
justifiable if that difference is used to benefit the least advantaged among us
or people like them. This is the difference principle.
So, these two rules that we talked about. What makes inequality just? that it
must be to everyone's advantage and be available when a position open to
all. What these two things ultimately boils down to is equality of opportunity
and the difference principle. These two things combined make up the test
that we have to run inequalities through to make sure that the inequality is
just and Rawls thinks that the actionable way to apply this is simply to
start looking around at society, findings examples of inequalities and put
them to the test.
Rawls wants us to not look at the disenfranchised as some pest that is sucking
out disproportionate number of resources, rather to look at them as a member
of our own family. When we live with our grandparents, we don’t expect them
to make food and do the household chores. We do it ourselves and at the
dinner table, we give them good, healthy food and not the left overs because
there’s a feeling that nothing that I’ve ever accomplished or become would’ve
been possible without their contribution and that’s exactly how it is in the
society as well.

(c)- Amartya Sen – The idea of justice

There's a fundamental difficulty that Sen finds with the Rawlsian idea of justice
and he categorizes that as “transcendental institutionalism”. The idea is that
Rawls seems to suggest that justice is somehow transcendental. It works the
same way according to the same principles in any place and over any time that
Sen has so much practical experience of the way injustice plays out all over the
world makes him dubious about the fundamental transcendental idea of
Justice that Rawls puts forward.
Sen argues, instead, that rather than thinking about some ideal theory of
justice that functions through a flawless set of rules that can be implemented
anywhere at any time. Looking around the world what we see the deepest
need for is a way to prevent the manifest injustice that is everywhere
perceivable. So, Rawls had concentrated on articulating an ideal conception of
justice that can be used as the model or the basis for judging various political
societies didn't and how just they actually are. So, we know how just
something is in relation to a certain ideal and it was the ideal theory of justice
that Rawls was working on. Sen, on the contrary, due in large part to his
empirical economic research has realized and explains in the idea of justice
that manifest injustice- the continuing poverty that plagues a great deal of the
world, manifest unequal access to resources and many of the other problems
that are rampant throughout the world forced us to stop dreaming about some
ideal theory of justice and instead come up with very practical implementable
conceptions or ideas of justice that can be employed right away to help
remove manifest injustice. So, we're moving from an ideal theory of justice to a
workable idea of justice in order to prevent manifest injustice.
How does Sen hope to achieve this?
Sen calls into question the fundamental deontological approach of justice that
we find in Rawls and he puts forward more of a consequentialist approach.
(However, he doesn’t use the terms ‘deontology’ and ‘consequentialism’). But
he does use new terms from classical Indian philosophy of ‘Niti’ and ‘Nyaya’.
He does seem to give clear indication that his approach is consequentialist.
Important terms- Deontological approach is concerned with the principles
while the consequentialist approach is concerned with the consequences. We
can consider an act ‘just’ if the act is in perfect accordance with certain
principle of justice. Alternatively, we can consider an act ‘just’ because of the
consequences that arise as a result of the acts which were performed. Eg:
Gandhi was a deontologist because for him means or principles were more
important than the ends.(he wanted freedom but only if it can be achieved
through the right principles i.e through non-violence). Bhagat Singh was a
consequentialist as for him ends were more important than the means or
principles. (freedom is the most important howsoever we get it)
Sen wants to lead us away from this principled approach which blends into the
transcendental institutionalism of the ideal theory of justice in Rawls and push
us more towards considering the consequences of our actions and our
organisations since these are the things that are going to be necessary to
remove manifest injustice. An ideal has to be translated into a viable practice
for injustice to be eliminated. Consequently, Sen seems to promote more
consequentialism and move away from the Deontology. The way he does this
is by introducing those terms ‘Niti’ and ‘Nyaya’. Sen refers to ‘Niti’ as the
organizational propriety and behavioural norms. In contrast ‘Nyaya’ stands
for actual social realization going beyond the organizational rules and norms.
So, in some respects ‘niti’ corresponds to the deontological while ‘nyaya’
corresponds to the consequential. Nyaya is to deliver justice on the ground. It's
concerned with what emerges and how it affects the actual lives of people and
those lives that people actually are capable of leading rather than articulating
lives in some book-ish sense according to an ideal theory. Niti is about rules
and institutions and nyaya is about their realization. In this respect we can
think of niti as the deontological aspect. Nyaya, in terms of realization, as the
consequentialist aspect. Now, Sen argues that both niti and nyaya are essential
and in that respect the claim that he is consequentialist as opposed to the
deontological is not fully accurate. That's why we have mentioned that these
are in some way parallels but niti isn't purely deontology and nyaya isn't purely
consequential. niti and nyaya are both fundamentally necessary, however,
unless the principles of niti are actually translated into nyaya- into the console
into the pragmatic consequences of those principles, then justice is certainly
not achieved. It's of no use at all having an ideal of justice if it cannot be
implemented on the ground. A part of the reason that Sen made these
innovations in the idea of justice over the ideal theory proposed by Rawls was
that he suggested that fundamental agreement about the ideal principles of
justice are much more difficult to achieve, in fact we have as yet failed to
achieve them, as opposed to certain compromises that can be reached with
respect to the elimination of manifest injustice. The argument is it's much
easier for us to agree on how to get rid of manifest injustice than it is for us to
agree upon the ideal of justice.

Criticism of Sen’s theory- Some critics have asked why do you believe that
that's necessarily so? if the same rational processes that allow us to come
together to eliminate manifest injustices can be actualized why can't they be
further oriented towards the discovery of the ideal of justice?

(d) Robert Nozick’s view on theory of justice.

Robert Nozick was an American academic and a renowned political

philosopher. His Anarchy, State and Utopia created a profound influence upon
the contemporary academic world of political science and political philosophy.
Nozick developed his theory in response to Rawls’ theory and he based his
theory of justice on rights. Though both Rawls and Nozick have developed two
theories of justice it cannot be said that Nozick was in any form critical of
Rawls. Rather he has showered huge accolade on the former. Rawls’ theory of
justice, Nozick cautiously maintains, “is a fountain of illuminating ideas,
integrated together into a lovely whole. Political philosophers now must either
work within his theory or explain why not”.

In his early years, Nozick was a great supporter of extreme libertarianism and
in the fag end of life he considerably modified his extreme libertarianism.
Some are of opinion that ultimately Nozick appears to us as a strong supporter
of a political doctrine which is known to us as neo-liberalism.

Concept of Distributive Justice:

Before we start our analysis about distributive justice put forward by Robert
Nozick we like to analyse very briefly the concept of minimal state. In the
classical political as well as liberal political theory the state was primarily
known as night watchman state which implied that the state had to discharge
minimum functions.

These were to maintain law and order, to take action against violence, to fight
the foreign aggressors, to stop theft and fraud, to implement all sorts of
contracts. In order to establish its existence and credibility the State had to do
all these functions. But subsequently it was felt that the functions of the State
could not be confined within the above noted categories and for this reason
the State that did these functions came to be designated as minimal state.

Many liberal thinkers are of opinion that the greater the functions of the State
the greater are the infringement of rights of the individuals. Though the
minimal state performs minimum functions still it is held that such a State has
enough power to enter into the domain the rights of the individuals. In spite of
this situation the minimal state is known as the most extensive State and such
a State is justified.

The reason of justifying it is such a State is the most powerful vehicle for
arriving at distributive justice. It is the duty of a political system to see that
none is deprived of justice and for that goal the State will have to take action.

Entitlement Theory:

Mention has been made that Robert Nozick bases his theory of justice on
rights. The rights come from the concept of entitlement. In other words, rights
mean entitlement. One has right or claim to anything means that one is
entitled to it. If justice means the distribution of right, duties, privileges etc.
then the idea of justice can appropriately be interpreted as entitlement theory
of justice.
Nozick is reluctant to give preference to distributive justice because this
concept does not give proper idea about the theory. He observes: “it would be
best to use a terminology that clearly is neutral”. Implementation or realisation
of the entitlement to holdings creates the foundation of the theory of justice.
Thus, Nozick’s theory of distributive justice and entitlement theory are same
and convey identical meaning.

There are three different principles or three major topics of holdings:

(1) When a man acquires a holding (we can interpret it as property though
Nozick does not use this particular term) according to the principle of
 justice and law, then the person concerned is entitled to that holding. In
other words, property acquired in a legal and justifiable way shall cause
under the authority of the person who has acquired it and it is a type of
justice.
(2) If a person happens to acquire a holding by means of transfer and here
in this case the basic principles of justice has been strictly adhered to,
then this justice- based transfer can reasonably be called an entitlement.
The transfer takes place from one person to another. There are different
forms of transfer such as voluntary exchange, gifts or any other type.

(3) In all societies not all transfers or acquisitions take place in proper or
legal or justifiable ways. There may be illegal transfers or acquisitions
and it has been found that such cases are not at all rare. Naturally the
rectification of this injustice or wrong can lead to another type of
holding. Nozick calls it the “rectification of injustice in holding”

When the three above noted holdings are conglomerated under one head that
gives birth to a concrete shape of the theory of justice. It can be better put in
the words of Nozick. He writes: “The general outlines of a theory of justice in
holdings are that the holdings of a person are just if he is entitled to them by
the principles of justice in acquisition and transfer, or, by the principle of
rectification of injustice. If each person’s holdings are just then the total set of
holdings is just”.

How do people come to know that injustice has been done to them in matter
of holding? Nozick answers that from the fact/records of history or from
various sources of information people gather the news that something wrong
has been done to them and in that case, they will move for the rectification of
the wrong. If this does not happen, one cannot expect that justice will prevail.

Historical Principles and End-Result Principles:

What is Historical Principle?

For a better and illuminating formulation of a theory of justice Nozick has
devised two principles-historical and end-result principles. Nozick has
demonstrated that from distribution emanates entitlement and now the
problem is how to decide that a distribution is just. If it is not just there cannot
be justice.
In order to decide this problem Nozick has applied the criterion of historical
principle. It says that the justness or unjustness of a distribution can be
decided by the fact that whether it is historical or not. Historical principle
means how it come about? Past records will show to what extent a distribution
is able to satisfy the requirements of justice. Let us see how he defines.
“Historical principles of justice hold that past circumstances or actions of
people can create differential entitlements or differential deserts to things”.

If a scheme or distributive system is unjust or defective this can be rectified (of

course if possible) or removed and in this way the distributive process moves
from one stage to another or one scheme to another.

In the concept of historical principle there lies a clear hint of evolution of the
theory of justice. There has occurred a gradual development of justice and this
is chiefly due to the reason that the material circumstances of society change
and this influences justice.

The End Result Principles:

Nozick has awarded another name to end-result principles and it is current
time- slice principles. This concept demonstrates that how things, rights, duties
and privileges are distributed and as a result of distribution who has got what
is to be decided. Here we find that the question is not about distribution per
se, we are to look into the consequences of distribution.

If the end result is satisfactory then it can be held that justice will be the result
of distribution. Let us put the matter in his own words. “According to current
time-slice principles (also read end-result principles), all that needs to be
looked at, in judging the justice of a distribution, is who ends up with what (ital
added), in comparing any two distributions one need look only at the matrix
presenting the distribution”. Two important points to be noted here.
Distribution must clearly state that who is getting what. The other point is this
is possible only through comparison.

Nozick demands that only the end result principles can tell us what would be
the exact nature of justice. If the procedure of distribution is incomplete or
defective or cannot assure us of justice then the procedure can be changed. He
also claims that this is the most reliable way of building up a theme of justice.
We also partially agree with Robert Nozick. Partially because other factors are
to be considered.
We thus come across the idea that the time-slice principles are also called
unhistorical principles. Time-slice principles, end-result principles and
unhistorical principles according to Nozick denote almost same thing. Noman
Barry and many others say that utilitarianism and social justice theories are
end-state doctrines.

According to Nozick the socialist theory about workers’ share in the profit of
the company is based on historical principles. The workers claim that they also
have a major share in the profit which the industry generates because this
profit is the result of their labour. They have drawn this conclusion from the
past history.

They have observed that the capitalists/owners of sources of production have

gobbled the entire profit by nefarious means. “The socialist rightly holds onto
the notions of earning producing, entitlement, desert and so forth and he
rejects current time-slice principles that look only to the structure of the
resulting set of holdings”.

From these two principles we form the idea that for a concrete theory of
justice it is necessary to emphasise the entitlement concept. If there are any
wrong doings in the acquisition of transfer of holding that must be rectified.
Otherwise the justness of the distribution of entitlement will remain defective.

Patterned Principles:
After analysing the historical and end-result principles, Nozick has introduced
another principle which he has designated as patterned principle. In the
opinion of Nozick : “Let us call a principle of distribution patterned if it specifies
that a distribution is to vary along with some natural dimension (emphasis
added), weighted sum of natural dimensions, or lexicographic ordering of
natural dimensions”.

Distribution of things, rights etc. should be controlled by other criteria. It may

be moral, merit, usefulness to society or weighted sum of merit etc. It implies
that the distribution will depend on merit, deserve, usefulness to society or
natural dimension. The entitlement theory we have just now sketched does
not fall in the category of patterned principle.

If a person possesses greater moral merit or if he has greater usefulness to

society then he may naturally claim shares, greater reward or higher shares.
And to deprive him of this rational claim will be tantamount to injustice. When
the distribution is based on patterned principle it is also called patterned
distribution.

Hence the whole sequence is justice is not based on equal liberty or any other
principle enunciated by John Rawls rather patterned principle and the pattern
relates to various elements such as usefulness to society moral merit etc. By
enunciating all these Nozick wants to establish a new doctrine.

Criticisms:
Nozick’s theory of justice is apparently attractive and convincing but in final
analysis it is not so.

Critics have raised several objections against it:

1. Nozick has given undue importance to distributive aspect of justice. Through

the entitlement of holding he has built up the entitlement theory. Entitlement
of holding may be in the form of acquisition or transfer or rectification of
injustice.

These are the cases of distribution but what about production? He has
neglected it and we think that it is unjust. Both production and distribution are
closely connected and to ignore one will lead to an incomplete theory.

2. Robert Nozick was in strong favour of minimal state which is equivalent to

night watchman state. It means that in any society the state has a role to play,
though the role may be minimum. Nozick’s theory does not make it clear what
role the state will exactly play in establishing justice.

Moreover, since Nozick’s theory falls into the category of distributive justice
the state, through its elaborate machinery, must ensure proper distribution of
holding, and at the same time entitlement to holding. If legal and other
problems arise on the way of acquisition or transfer or rectification of previous
wrong who will take the responsibility of rectifying this or solving the problem?
In Nozick’s theory it remains unsolved.

3. Nozick has taken it for granted that people will strictly adhere to Locke’s
proviso that enough will be left for the use of others for their use and the
situations of others will not worsen. This implies too much reliance on the
rationality of holders or users of property. But we cannot say that all the
property owners will resist them from acquiring property/holding beyond their
necessity.

If this happens in actual world, we are sure, there would not arise necessity of
state or enforcing authority. Even the Utopian socialists and Rousseau could
not imagine such a situation.

4. It is unfortunate that both Rawls and Nozick have offered us a theory of

justice which they wanted to formulate in a society plagued by class divisions.
If a society is divided into two opposing classes, and if one class is economically
dominant the comparatively weak class would definitely be deprived of justice.
For a real theory of justice, we firmly believe, there shall exist equality in its
various manifestations.

5. Nozick, in his thorough analysis of distributive justice intends to highlight a

greater philosophy and wants to draw the attention of his readers to politics
which is popularly called liberalism.

But though liberal philosophy has many good aspects, its black spots and
irritating aspects are not to be ignored. The real picture of liberal political
philosophy of USA, Britain, and other states is not unknown to us and in that
perspective we can say that neither Rawls’ nor Nozick’s theory of justice
attracts us. They are meant for capitalism.

6. Justice can be divided into social, economic and political and all are
connected with each other. Rawls’ and Nozick’s theory speaks least about their
connection. Their theory is based upon certain principles.

(e) Lon Fuller- Morality of law

• Fuller’s theory falls somewhere between natural law and legal positivism.
1. It is positivistic insofar as he does not think that morality determines the
content of the law.
2. It is a natural law theory in that he does believe that there are “moral”
constraints on the structure of law and how it is made.

• Fuller’s focus is on what he calls the “inner morality of law.”

1. The external morality of law would be the application of moral standards
distinct from law to the law itself, much like the traditional natural law theorist
does.
2. The inner morality of law instead derives constraints on law from the ends
or goals of making law. He argues that this is a kind of natural law theory, and,
in fact, one that we see in the opinions of British jurists and in the writings of
the US Founding Fathers, who aimed to “avoid repugnancies” in their
institutions. For example, in defending the power of the courts to declare acts
of Congress unconstitutional, Hamilton argues that even in the absence a
written constitution judges are compelled to set a rule for dealing with
contradictory enactments of law, but that such a rule is derived “not from any
positive law, but from the nature and reason of the thing.”

• In further describing the inner morality of law, Fuller calls his account a
“procedural” rather than a “substantive” natural law theory.
1. Procedural: “Concerned, not with the substantive aims of legal rules, but
with the ways in which a system of rules for governing human conduct
must be constructed and administered if it is to be efficacious and at the
same time remain what it purports to be.”
2. 2. A procedural natural law account provides “lower” rather than a
“higher” laws…it is not concerned with any “brooding omnipresence in
the skies.” Rather, it’s laws are like the laws of carpentry…if you want to
build a good house, there are certain rules and procedures you will have
to follow.

• The rules and procedures for successfully making law are not best
understood as imposing duties on the lawmaker.
Rather, they are a kind of affirmative or aspirational morality. They set aims
that the lawmaker should strive for, but not duties that are somehow binding
on them. There is one exception: There is a duty to promulgate the laws.

• The eight particular rules and procedures for making law that Fuller defends
are laid out in the allegory of Rex, the failed king.
1. One should actually make/achieve rules.
2. One must publicize those rules and make them available to the affected
parties.
3. One should avoid retroactive legislation.
4. One should aim to make rules understandable by those who they affect.
5. One should not enact contradictory rules.
6. One should not enact rules that require conduct beyond what is possible or
within the powers of the affected parties.
7. One should not frequently change the rules.
8. One should aim for congruence between the rules as announced and their
actual administration.

• The common link between these is that laws (or a system of laws) that don’t
meet these requirements will not serve to guide the conduct or shape the
behavior of those who are subject to the laws.
1. Failure to provide this guidance in a clear way constitutes a failure of
reciprocity between government and governed: Gov’t says: These are
the rules we expect you to follow. If you follow them, you have
assurance that they are the rules that will be applied to your conduct.
2. When this reciprocity is ruptured, nothing is left to ground the citizens
duty to obey the rules.